Reporter's Privilege Compendium

I. Introduction: History & Background

The South Carolina General Assembly adopted a reporter's shield law in 1993 in response to a major lobbying effort by the South Carolina Press Association with assistance from the South Carolina Broadcasters Association. The only appellate decision involving the shield law arose out of the murder trial of Susan Smith, the woman who rolled her car into a lake with her young sons strapped in their car seats. Twila Decker, a reporter for The State newspaper in Columbia, S.C. had obtained access to information in a report on the court-ordered psychiatric examination of the defendant in spite of what the trial judge believed was an airtight order of confidentiality for the report. Decker was called to the stand by the court and interrogated as to her source. Upon refusing to disclose her source Decker was held in contempt. Her imprisonment was stayed pending an accelerated appeal to the Supreme Court of South Carolina.

Recent cases involving motions to quash subpoenas served on journalists have generally met with success. The major points of dispute have been the scope of coverage, e.g., who is a journalist, and the exhaustion of alternative sources for the information.

II. Authority for and source of the right

A. Shield law statute

The South Carolina General Assembly adopted a shield law as Act No. 138 of 1993. The Act became effective upon the signature of the governor on June 14, 1993. The enactment is codified as S.C. Code Ann. §19-11-100 (Supp. 2001) and provides:

(A) A person, company, or entity engaged in or that has been engaged in the gathering and dissemination of news for the public through a newspaper, book, magazine, radio, television, news or wire service, or other medium has a qualified privilege against disclosure of any information, document, or item obtained or prepared in the gathering or dissemination of news in any judicial, legislative, or administrative proceeding in which the compelled disclosure is sought and where the one asserting the privilege is not a party in interest to the proceeding.

(B) The person, company, or other entity may not be compelled to disclose any information or document or produce any item obtained or prepared in the gathering or dissemination of news unless the party seeking to compel the production or testimony establishes by clear and convincing evidence that this privilege has been knowingly waived or that the testimony or production sought:

(1) is material and relevant to the controversy for which the testimony or production is sought;

(2) cannot be reasonably obtained by alternative means; and,

(3) is necessary to the proper preparation or presentation of the case of a party seeking the information, document, or item.

(C) Publication of any information, document, or item obtained in the gathering and dissemination of news does not constitute a waiver of the qualified privilege against compelled disclosure provided for in this section.

The push for a shield law grew out of a federal court prosecutions of members of the state's General Assembly for corruption. The U.S. Attorney called four reporters to the stand in the trial of a state senator. When each reporter declined to testify the court held them in contempt and confined them over the course of three days until the government withdrew the subpoenas. The contempt citations were appealed to the Fourth Circuit and resulted in a majority opinion which declined to recognize a privilege in the absence of bad faith on the part of the government. A concurring judge rejected the majority's rationale and characterized it as "a one-dimensional look at a two-dimensional problem." In re Shain, 978 F.2d 850 (4th Cir. 1992).

The shield law is not generally known to the bench and bar, and each subpoena directed at a reporter or news organization is in the first instance an educational exercise. Many lawyers and some judges are incredulous that the legislature would impose such a barrier to the quest for evidence. There have been no efforts since 1993 to amend the law.

B. State constitutional provision

The South Carolina Constitution contains at Art. I, §2 a free press guarantee that has been described by the Supreme Court of South Carolina as protecting the same rights as are protected by the First Amendment to the United States Constitution. City of Rock Hill v. Henry, 244 S.C. 74, 135 S.E.2d 718 (1963), rev'd on other ground 376 U.S. 776 (1964). There is no shield law protection in the South Carolina Constitution.

C. Federal constitutional provision

The Supreme Court of South Carolina has said that the First Amendment to the United States Constitution does provide a "qualified privilege in limited situations, such as when the grand jury acts in bad faith or the press is being subjected to official harassment. Branzburg [v. Hayes, 408 U.S. 665 (1992)]," but refused to apply it in circumstances where a trial judge was seeking from a reporter the identity of her confidential source for information in the court-ordered psychiatric evaluation of a murder defendant. Matter of Decker, 322 S.C. 215, 471 S.E.2d 462 (1995), n.4 (emphasis in original).

D. Other sources

The only evidentiary privileges recognized under the South Carolina rules of evidence are those required by the constitution, statutes or common law. Rule 501, SCRE. The South Carolina Rules of Civil Procedure provide the basis for an order for a journalist or any other person who is not a party to the litigation to protect against burdensome, expensive or harassing subpoenas for production of documents. Rules 26(c) and 45 (c), SCRCP.

III. Scope of protection

A. Generally

The scope of the South Carolina privilege is broad and includes information, documents or items obtained or prepared in the gathering and dissemination of news. Since the most common subpoenas seek to compel the production of unpublished photographs of automobile accident scenes and the confirmation of published material, the shield law works to retard the annexation of reporters and photographers as investigators for the litigants.

2. Criminal

3. Grand jury

There does not seem to have been a grand jury subpoena for a reporter since the adoption of the shield law. There is language in Matter of Decker, 471 S.E.2d 462 (1995), that could limit the protection of the shield law if the court should conclude that it is the grand jury seeking to compel testimony or production rather than the prosecutor. In Decker the Supreme Court held that the privilege was effective only against a "party" to the proceeding and did not limit the ability of the court to seek information from a reporter. If the grand jury is a "party" to a grand jury proceeding, the privilege would be applied. If the grand jury is not a party, the privilege would not apply.

D. Information and/or identity of source

The language of the statute is broad, and seeks to protect against compelled disclosure of "any information...obtained or prepared in the gathering or dissemination of news," so, in theory, the identity of the source would be protected. This provision has not been the subject of litigation at the time of the preparation of this outline.

E. Confidential and/or nonconfidential information

As first introduced the shield statute would have created an absolute privilege for confidential information, but in a compromise to obtain passage the privilege was made qualified for both confidential and non-confidential information.

F. Published and/or non-published material

G. Reporter's personal observations

The language of the statute provides a privilege against compelled disclosure of "any information" "obtained" "in the gathering or dissemination of news," so it would seem that a reporter's personal observations would have the same qualified privilege as other information. This provision has not been the subject of litigation at the time of the preparation of this outline.

H. Media as a party

The qualified privilege under the statute is available only in those cases where "the one asserting the privilege is not a party in interest to the proceeding." An interesting situation could arise where the publisher or broadcaster is the party in interest and the reporter seeks to assert the privilege. Unsympathetic courts might resort to strained alter ego and agency principles to compel the production of information.

I. Defamation actions

IV. Who is covered

The South Carolina shield statute provides a qualified privilege against compelled testimony or production for "A person, company, or entity engaged in or that has been engaged in the gathering and dissemination of news for the public through a newspaper, book, magazine, radio, television, news or wire service, or other medium." "News" is not defined, but under the rules of decision in state courts, the legislature will have been credited with using the word as it is generally understood.

b. Editor

c. News

There is no definition of "news," but the word will be given its ordinary meaning in the absence of an indication by the legislature that it intended another meaning. There is no contrary meaning in the statute.

d. Photo journalist

e. News organization/medium

The South Carolina shield law has a comprehensive scope with respect to covered persons and entities. If the person or entity is engaged or has been engaged in the gathering or dissemination of news to the public through a newspaper, book, magazine, radio, television, news or wire service, or other medium, the qualified privilege applies.

2. Others, including non-traditional news gatherers

There has been one trial court order holding that an unpublished book author could assert the privilege, but that the party seeking to compel production of the author-to-be's notes and videotapes had overcome the qualified privilege with respect to certain material. The privilege is available for those engaged in the gathering and dissemination of news. A newspaper librarian could assert the privilege on behalf of a newspaper to challenge a subpoena to produce past editions of the paper. These challenges are not unusual, and are most often successful when microfilm copies of the newspaper are available at a public library.

B. Whose privilege is it?

V. Procedures for issuing and contesting subpoenas

A. What subpoena server must do

1. Service of subpoena, time

A subpoena seeking to compel attendance at a deposition or trial may be served at any time prior to the deposition or trial, but the person served has the right to move to quash the subpoena if insufficient time for compliance has been provided. Rule 45(c)(3)(A)(i), SCRCP. A subpoena seeking to compel the production of material for trial must be served at least 10 days prior to trial. Other subpoenas for production do not have a minimum time for response, but the person compelled may move prior to the time for responding for a protective order.

2. Deposit of security

South Carolina Rules of Civil Procedure require the party serving a subpoena to compel attendance at a trial or deposition to tender $25.00 and mileage at the official rate to the person served at the time of service. Rule 45(b)(1), SCRCP.

3. Filing of affidavit

4. Judicial approval

Under South Carolina Rules of Civil Procedure subpoenas are issued in blank by the clerks of court in each of the counties, or the subpoena may be issued by an attorney licensed to practice in the state. For criminal courts the subpoenas are to be issued by the clerk of court.

5. Service of police or other administrative subpoenas

Civil subpoenas can be served by anyone not less than 18 years of age who is not a party to the proceeding. Criminal subpoenas are to be served by the sheriff in the county where the person served is located. Service is made by personal delivery.

B. How to Quash

1. Contact other party first

The law does not require that the party serving the subpoena be contacted as a first step, but in hopes that the issue can be resolved by a little education, that is a good place to begin the process. If a subpoena is served in a civil case to compel the production of things, the first step may be to write to the party serving the subpoena to object to the subpoena. If a written protest has been made, the party serving the subpoena may then bring a motion to compel.

2. Filing an objection or a notice of intent

South Carolina rules of civil practice require consultation in advance with respect to motions, so prior to moving to quash a subpoena in a civil case one would attempt to consult to resolve the issue. If the subpoena is for the production of documents and things, a letter of objection is sufficient to place the subpoena in issue.

3. File a motion to quash

a. Which court?

The motion to quash should be filed in the court in whose name the subpoena was issued. For example, a subpoena compelling attendance at a deposition in a civil case shall issue from the court in the county where the deposition is to be held. A non-party may be deposed in the county where he works or resides. If neither of these counties is the county where the action is pending, the subpoena must come from the county where the deposition is to be held. Depositions in criminal cases issue from the county where the case is pending, so motions to quash should be directed to that court.

b. Motion to compel

Operating on the principle that the party who files the motion sets the agenda, I would always recommend moving to quash a subpoena. If you are convinced that the attorney serving the subpoena will fail to act in response to a letter of objection in those circumstances where the subpoena seeks the production of documents or things only, you may choose not to move to quash.

c. Timing

In civil cases the written objection to production must be made within 14 days of the receipt of the subpoena or prior to the date for response if shorter than 14 days. Motions to quash or for a protective order must be made in advance of the time set for production or testimony.

d. Language

In civil cases a motion to quash or for a protective order made on grounds of the privilege must describe the privileged material in sufficient detail to allow the responding side to contest the issue. There is no similar requirement in responding to a criminal court subpoena, but a description phrased in your language helps set the agenda.

A customary response to a subpoena to a reporter seeking to compel the production of notes or testimony might state: "Movant is a reporter for the Daily Planet, and the information or documents sought by the attached subpoena was obtained in the process of gathering or dissemination of news and is privileged under S.C. Code Ann. §19-11-100 (Supp. 2001)."

e. Additional material

State court judges generally have too many cases, too little help and too little time to read expansive material submitted in support of motions. Since all motions are decided after oral argument, the customary practice is to keep the motion short and to the point, and to argue in the same fashion.

4. In camera review

a. Necessity

b. Consequences of consent

If an appeal is taken from an order denying a motion to quash, and, in effect, compelling the production or testimony, that order would be in the nature of an injunction, which is not automatically stayed on appeal. In such a case it would be necessary to seek a writ of supersedeas from first the trial court and then the appellate court where the appeal has been filed. Rule 225, SCACR.

c. Consequences of refusing

As a practical matter the consequence of refusal will likely be a denial of the motion to quash. I would argue that just as in camera review is not the norm in cases involving the assertion of attorney-client privilege, it should not be required in journalist privilege cases.

5. Briefing schedule

6. Amicus briefs

Amicus briefs are rare but not unknown at the trial court level. Rule 213 of the South Carolina Rules of Appellate Procedure describes the mechanism for seeking leave of the court to file an amicus brief. In the only appellate case involving the South Carolina shield law an amici brief was filed on behalf of the Reporters Committee for Freedom of the Press and the South Carolina Press Association. The most likely organization to petition for leave to participate as an amicus is the South Carolina Press Association, P.O. Box 11429, Columbia, S.C. 29211, 803/750-9561.

VI. Substantive law on contesting subpoenas

A. Burden, standard of proof

The South Carolina statute provides that the party seeking to compel testimony or production must establish either waiver of the privilege or the enumerated factors to overcome the privilege by clear and convincing evidence.

B. Elements

1. Relevance of material to case at bar

2. Material unavailable from other sources

The party seeking to compel testimony or production must show that it "cannot be reasonably obtained by alternative means." This exhaustion hurdle is often the basis for a favorable ruling on the motion to quash because many of those seeking to compel testimony or production have made no effort to identify an alternative source for what is sought.

b. What proof of search does a subpoenaing party need to make?

The party seeking to overcome the privilege must show by clear and convincing evidence that a reasonable effort has been made to obtain the information from an alternative source, but the effort failed.

c. Source is an eyewitness to a crime

The privilege is most likely to be overcome if the source was either an eyewitness to a crime or a participant in a crime, but the party seeking to overcome the privilege still must make the appropriate showing of exhaustion.

3. Balancing of interests

4. Subpoena not overbroad or unduly burdensome

If a motion for a protective order is made on grounds that a subpoena is overbroad or unduly burdensome, the court hearing the motion will be required to make a determination on the issue to rule on the motion.

5. Threat to human life

There is no requirement to weigh whether the matter subpoenaed involves a threat to human life, but if the party seeking to compel the production of that matter were able to establish the threat to human life, the motion for a protective order would most likely be denied.

6. Material is not cumulative

7. Civil/criminal rules of procedure

The rules of civil procedure specifically provide for the filing of a motion to quash or for a protective order. There is not equivalent provision in the criminal procedure rules, but such motions are accepted by the courts.

8. Other elements

C. Waiver or limits to testimony

1. Is the privilege waivable?

There are no cases addressing the waiver of the privilege, but the South Carolina statute provides that the privilege belongs to the journalist, and that a person seeking to overcome the claim of privilege must establish waiver by clear and convincing evidence.

2. Elements of waiver

a. Disclosure of confidential source's name

There are no cases on the waiver issue, but if publication does not constitute waiver of the privilege, it is unlikely that disclosure of the information to an editor or attorney involved in the dissemination aspect of the news could constitute a waiver.

c. Partial disclosure of information

If waiver is to be established by the party seeking to overcome the privilege, it is most likely to be established by circumstantial evidence. Such evidence might include the partial disclosure of information within the scope of the claim of privilege to someone not involved in the gathering and dissemination of news. As a parallel, the disclosure by a client of information within the scope of the attorney client privilege is a waiver of that privilege.

d. Other elements

There are no court decisions discussing elements of waiver of the journalist's privilege in South Carolina, but a situation that might lead to a finding of waiver exists where a publisher provides a contact sheet of unpublished photographs of an automobile accident scene to one side in a civil case and then attempts to resist a subpoena for the same photographs by the other side.

3. Agreement to partially testify act as waiver?

It is not a good practice to let reporters talk to lawyers about the scope of their testimony. Any discussion by the reporter might provide a basis to challenge the claim of privilege. If the issue is the confirmation of publication, there is no need for such testimony because newspapers and other periodicals are self-authenticating documents under the South Carolina Rules of Evidence. As for whether or not the story is true, there are likely other sources besides the reporter to testify on that point so the exhaustion requirement cannot be met.

VII. What constitutes compliance?

A. Newspaper articles

B. Broadcast materials

If the issue is whether a particular piece was broadcast, the parties typically will stipulate regarding a broadcast to avoid having a representative of the broadcaster appear. If no stipulation is reached, a representative who has first-hand knowledge of what was broadcast or who is the custodian of business records revealing broadcast information would have to appear.

C. Testimony vs. affidavits

If the issue is whether a particular item was broadcast, very often the parties will agree to accept an affidavit from the station. If the question is whether a particular story was true, the parties are not likely to accept an affidavit.

D. Non-compliance remedies

1. Civil contempt

a. Fines

There are no caps on civil fines imposed to compel compliance with a court order. Fines in the form of sanctions have been imposed against recalcitrant litigants in civil cases, but these cases have not involved reporters.

b. Jail

If the purpose of the confinement is to coerce compliance with a court order, confinement can last as long as compliance remains relevant to the controversy before the court. If the reporter fails to comply with an order compelling testimony, but the trial continues without the testimony, the confinement must end when the trial ends because there will be no opportunity to purge the contempt. One South Carolina reporter, Twila Decker, was sentenced to jail for civil contempt, but the Supreme Court of South Carolina stayed the confinement pending an accelerated appeal of the contempt citation. Matter of Decker, 322 S.C. 212, 471 S.E.2d 459 (1995).

2. Criminal contempt

3. Other remedies

VIII. Appealing

A. Timing

1. Interlocutory appeals

Since the shield law has application only when the person or entity asserting the privilege is not a party to the proceeding a denial of the motion to quash or for a protective order would be immediately appealable. If the order is in a civil court the time for appeal is 30 days from the date of the order denying the motion. In criminal cases the notice of appeal must be filed within 10 days of the order. No distinction should be drawn with respect to the claim of privilege based on whether the subpoena is for discovery or trial.

Accelerated appeal is appropriate where the reporter has been cited for contempt for failing to comply with an order following assertion of the privilege. In all cases where the reporter has been found to be in contempt, move to stay the coercive action pending appeal.

2. Expedited appeals

There are no special rules for expedited appeals. An appeal may be expedited upon motion of the reporter, the party seeking to compel or the appellate court on its own motion. There is no special treatment for appeals by news media.

B. Procedure

1. To whom is the appeal made?

Appeals from magistrate courts must be taken to circuit court. Appeals from administrative tribunals must be taken to circuit court. Appeals from circuit court go to the South Carolina Court of Appeals unless a constitutional issue is involved. In the instance of a constitutional question, the appeal may be to the Supreme Court of South Carolina.

2. Stays pending appeal

Civil contempt is not automatically stayed by appeal. To obtain a stay or writ of supersedeas pending appeal the party must first seek relief from the trial court. If relief is denied, a petition may be filed with the appellate court where the appeal is pending. A stay or supersedeas may be issued upon a showing of irreparable harm. Since the Supreme Court of South Carolina has recognized a First Amendment privilege in a limited set of circumstances, a claim that those circumstances exist but have been disregarded by the court below should be included in the motion if they exist. If the facts are outside the scope of the limited circumstances identified by the Supreme Court, it would not be acceptable to assert a privilege based on the First Amendment.

3. Nature of appeal

4. Standard of review

The standard for review will be abuse of discretion. If the limited circumstances under which the South Carolina Supreme Court will recognize a First Amendment privilege exist, the argument can be made that review should be de novo.

5. Addressing mootness questions

The question of mootness has not been addressed in the context of the shield law, but in other cases involving First Amendment issues the court has been willing to grant review where the action below has ended, but the deprivation complained of is capable of repetition while evading appellate review if the mootness issue were strictly applied.

6. Relief

Depending upon the nature of the ruling below the appellate court should be asked to vacate the contempt citation or remand the case for consideration of the appropriate elements that must be proved by clear and convincing evidence to overcome the claim of privilege.

IX. Other issues

A. Newsroom searches

There have been no newsrooms searches in South Carolina. There have been cases where photojournalists have been arrested at the scene of accidents, but the prosecutions have been dismissed. In one case where a photographer had his camera confiscated a civil action under the Civil Rights Act resulted in a settlement with the law enforcement agencies making payments to the photographer and his newspaper.

B. Separation orders

It is unlikely that any newspaper in South Carolina would rely on a reporter who is to be a witness in a case to cover the trial of the case. In the federal case discussed above, In re Shain, the reporters who were most knowledgeable on the subject of the corruption trials were the ones who were subpoenaed to testify. This removed them from trial coverage and had the effect of diminishing the ability of the public to receive the most complete coverage of the trial.

C. Third-party subpoenas

No court in South Carolina has dealt with this issue although the third-party subpoenas were used in the Food Lion v. ABC case. As a theoretical matter, could ABC have moved to quash those subpoenas on privacy grounds?